해약계약금의 약정에서 계약금의 일부만 지급된 경우의 법률관계

초록

According to our Civil Code, a sale shall become effective when one of the parties agrees to transfer a property right to the other party and the other party agrees to pay the purchase-price to the former. That means, because sale is a consensual contract, delivery of down payment is not a establishing requisite of the contract. However, in real business such as sale of real estate in a relatively large amount of transactions, it is quite common to make a contract, which phrases that down payment will be delivered at the time of entering into a contract in prior and then intermediate or the rest payment will be paid sequentially or later on. Concerning agreement of down payment, our Civil Code stipulates that unless otherwise agreed upon between the parties, the deliverer by giving up such money, and the receiver by repaying double such money, may rescind the contract before one of the parties has initiated performance of the contract. Conventionally majority theory and judicial precedent regard so-called down payment contract as substantial contract. That means that the parties can have the right of rescission when agreed down payment is delivered actually. In this judgement it matters that the seller, who is paid part of the down payment, can rescind the contract whether by repaying double such paid money or by repaying actual paid money plus agreed down payment additionally, in case that the parties agreed delivery of down payment at the time of entering into the sale contract but buyer paid partial amount of down payment on the day of making contract and then would pay the rest the next day. About this case, judgement decided that the criteria of earnest money for rescission is not the amount of actually delivered down payment but agreed one. I basically subscribe to the conclusion of judgement, but oppose to its premise, which regards down payment contract as substantial contract. On the contrary, I regard down payment contract as consensual contract, but maintain that, the same as conclusion of judgement resultingly, the parties can rescind the major contract by delivering agreed down payment.

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